On Pornography

(By T.G. John, Advocate, Trichur)

One of the most important teachings of the early Christian fathers was that sex was sinful and it was better to marry than to be consumed with lust. A glorification of virginity resulted in chastity being virtually identified with absolute celibacy. And yet only 700 years ago Saint Thomas Acquinas did permit pre-marital intercourse between those who were formally betrothed - on the understanding that they would not desert afterwards.

This sexual attitude lasted well past Shakespeare's day and is precisely the mortality which some have adopted today. The great hardening of this Western attitude - apart from a temporary rigour under Cromwell when adultery was made a capital offence - came when the Victorian middle classes set the moral tone in English society.

Some civilizations - among the Asians as well as the Eskimos - frown heavily on adultery, but offer the company of a host's wife to an over-night guest because they do not believe that it impairs anyone's chastity. In other communities unlimited sexual intercourse is permitted as most natural to young people before marriage and strict monogamy expected afterwards.

Are ideals of continence and virginity to be permanently abandoned in a long orgy of sexual licence - or are they merely cast up for re-examination, new thinking and responsible decisions on accepted morality?

It could have been only against such a background of diverse moral notions existing in different parts of the globe that two diverse judicial pronouncements were made, one in England and the other in India regarding a common issue :

"Whether the controversial novel 'Lady Chatterley's Lover' literary master-piece of the celebrated author D.H. Lawrenece - is obscene literature or not."

The novel earned a general reprieve in the Central Criminal Court in London in November 1960 when it was held that to read of the exploits of Constance (Lady Chatterley) would not 'deprave and corrupt' the reader. The contention of the prosecution that the book commended sensuality 'almost as a virtue' was rejected. In May, 1961, the Additional Chief Presidency Magistrate of Bombay held that the book is obscene, in an eighteen page judgment in a case in which four partners of a bookstall in South Bombay were charged for having been in possession of unexpurgated copies of the novel.

It is not my purpose to criticise judgments but some considerations mainly pertaining'to literary criticism might be advanced. It is difficult to say where frank literature ends and pornography begins. In the controversial novel we come across intimate description of about a dozen sexual intercourses in the minutest detail where the heroine Constance (Lady Chatterley) commits adultery with their game keeper. The book by itself 1s said to be a satire on the upper class aristocracy. Nevertheless, its potentiality as one of the best literary pieces of the present era could not be underrated.

What is pornography? A serious attempt has been made in America to distinguish between acceptable books which contain passages of erotic realism and sheer pornography which sets out simply to titillate. The stream of smutbooks in France makes no attempt to describe life as it is really lived, even in the most depraved circumstances. Its chief feature is its deliberate unreality. Psychiatrists analysing the structure of such stories find the writers deliberately seizing on out strongest taboos, religious and otherwise. They detect wishful thinking, an exaggerated revolt against all the social rules of sex. In the American analysis 'Pornography and the Law' by Dr. Eberhard, the two categories of books appear quite unmistably different - the one true to life and the other full of sex - fantasy and Freudian Nightmare. But the law still makes no clear distinction between these two classes of writings. Both types tend to be lumped together.

Coming back to that amiable young lady, Lady C. many famous books of the past are open to the objection now advanced against the novel of D.H, Lawrence. The 'Memoirs of Casanova' and even 'Candide' of Voltaire and some of Anatole France's novels are, a Puritan would say, tarred with the same brush. Yet no liberal education could be complete without these books. The very task of regulating literature is repugnant to the fair ranging human spirit; it is clearly inadmissible that Authority should be entrusted with the task of regulating literature. To crib, cabine and confine literature is clearly inadvisable.

The arms of Law are very long; but then let Her Majesty, the Law think twice before it touches the sanctum - sanctorum of the Goddess of Literature.

'No Limitation without Knowledge - Actual or Deemed'

(By M.R. Rajendran Nair, Advocate)

Decisions given in ignorance or forget fullness of some inconsistent statutory provisions or of some authority binding on the Court concerned are called 'per incuriam'. Where, by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedent. ((1975) 2 SCC 232)

On this premise it is submitted that the apex court's decision in Tota Ram v. State of U.P. - JT 1997 (6) SC 231, to the effect that the limitation of 3 months under S.28A of the Land Acquisition Act 1894 starts from the date of order and not from the date of knowledge is clearly wrong. It is per incuriam. In Raja Harish Chandra Raj Singh v. The Dy. Land Acquisition Officer (AIR 1961 SC 1500), while construing the proviso to S.18 of the Land Acquisition Act the Supreme Court held that "the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fairplay and natural justice the expression "the date of the award" used in the proviso must mean the date when the award was either communicated to the party or is known by him either actually or .constructively. In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collectors award' used in the proviso to S.18 in a literal or mechanical way."

There is no reason why the phrase 'date of award of the reference court' should be differently construed. The Supreme Court in Harish Chandra's case observed that the view taken by the High Court proceeds on the literal constructions of the relevant clause, and that the literal and mechanical construction of the words, 'the date of award' occurring in the relevant section would not be appropriate.

In Assistant Transport Commissioner v. Nand Singh (AIR 1980 SC 15), within the meaning of S.15 of Utter Pradesh Motor Vehicles Taxation Act, it was the date of the order which gave the starting point for preferring an appeal within 30 days of that date. The Supreme Court held that in a given case, the date of putting the order in communication under certain circumstances may be taken to the date of communication of the order or the date of the order. Following Harish Chandra's case, appeal filed within 30 days of the date of knowledge was held to be within time. It was .observed that generally speaking the order would be effective against the person affected by it only when it came to his knowledge either clearly or constructively, otherwise not.

In Collector of Central Excise v. M.M. Rubber and Co. AIR 1991 SC 2141 it was held that so far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing of such order.

Therefore, courts have uniformly laid down as a rule of law that for seeking the remedy, the limitation starts from the date on which the order was communicated to him or the date on which it was pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing of the passing of the order and what it contains. The knowledge of the party affected by such a decision, either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him otherwise the party affected by it will have no means of obeying the order or action in conformity with it or of appealing against it or otherwise having it set aside. This is based upon, as observed by Rajamanner, C.J. in Muthia Chettiar v. CIT (AIR 1951 Mad 204) (supra), "a statutory and just principle". The application of this rule so far as the aggrieved party concerned is not dependent on the provisions of the particular statute, but is so under the general law".

'In Dhara Singh v. State AIR 1981 SC 427 following AIR 1961 SC 1500 it was held that when the law lays down that non-compliance with an order could expose the person against whom it is made to criminal liability it is reasonable to hold that in the absence of proof of his knowledge of the order no penal action can be taken against him for non-compliance with it. The information or knowledge in the course of criminal proceeding instituted for non-compliance could not be a substitute for the knowledge which should ordinarily precede the institution of such proceedings.

Thus, when the Supreme Court has laid down the law in unequivocal terms, and it is settled legal position that no Judge in India except a larger Bench of the Supreme Court without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio of a binding decision, the decision of Supreme Court in JT 1997 (6) SC 231 has to be viewed as per incuriam and for that reason the decision of the Kerala High Court reported in 1997 (2) KLJ 520 does not reflect the correct legal position.

A distinction has to be drawn between a case where an order is passed in presence of parties, actual or constructive or with notice, and where such order is passed without notice and in their absence. In the latter case, 'date of the order' should necessarily mean date on which the concerned party comes to know about the Order either by communication or otherwise. To act on the basis of an order without actually coming to know about that will be an impossibility. Law never prescribes 'impossibility' and therefore, in order to avoid the 'impossibility' of an action contemplated by law interpretative innovation should lead to a purposive construction, so that the statutory provision does not become illusory.

No Cause of Action, not Maintainable, but Decreedi

(By M.R. Rajendran Nair, Advocate, Ernakulam)

Can the plaintiff in a Civil Suit for specific performance of a contract get over the personal bar to relief under S.16(c) of the Specific Relief Act, depending upon status of defendant. According to the decision of Supreme Court in Jug Raj Singh and Anr. v. Labh Singh & Ors. reported in (1995) 2 SCC 31, defendants, non parties to the contract will not be entitled to contend that the plaintiff was not read} and willing to perform his part of the contract. According to the Supreme Court the plea is specifically available to the Vendor/Defendant and it is personal to him. Subsequent purchasers have got .only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff.

The Supreme Court stated the position as follows:

"Though they are necessary parties to the suit, since the decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives but not to the subsequent purchasers".

It is submitted that this statement does not reflect the correct legal position as can be seen from the settings of the provision and the binding precedents. S.16(c) of the Specific Relief Act reads as follows:-

"16. Personal bars to relief:- Specific performance of a contract cannot be enforced in favour of a person.

xxxx          xxx      xxx

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than terms the performance of which has been prevented or waived by the defendant.

Explanation (ii) to CI. (c) also is relevant.

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction".

Absence of averment as stipulated in S.16(c) of Specific Relief Act, 1963 and proof thereof will be fatal to a plaintiff in suit for specific performance.

In Ouseph Varghese v. Joseph Aley reported in (1969) 2 SCWR 347 the Supreme Court held as follows:

"........... He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. In the absence of such an allegation the suit is not maintainable. In the present case, the plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of the defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code".                       (Emphasis supplied)

Where a suit is not maintainable for lack of pleadings how can it become maintainable depending on any plea available or not available to any defendant. There is no provision in law which stipulates that a particular class of defendants will be precluded from raising a contention to the effect that the suit is not maintainable or that the plaintiff had the cause of action.

The relevant paras of the Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code are reproduced below:

"3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice." (Form No.47)

"5. The Plaintiff is still ready and willing to pay the purchase money of the said property to the defendant". (Form No.48)

Of course in view of the ruling of the Supreme Court in Pandu Rang Ganpat Janawade v. Ganapat BAAIRU Kadam (1996) 10 SCC 51 and Sukhbiv Singh v. Brijpal Singh (1997) 2 SCC 200, procedure being hand maid to substantiate rights of parties, a strict conformity with the form may not be necessary. But the necessary ingredients constituting readiness and willingness must be pleaded and proved. What requires to be considered in whether the essential facts constituting the ingredients in S. 16(C) of the Act were pleaded.

The consequence of plaintiff not complying with the mandatory statutory requirement of S.16(c) of Specific Relief Act is also very specific. If there is no averment of 'readiness' and 'willingness' the plaint will not disclose a cause of action and the same will have to be rejected under O.7 R.11(a) or (d), according to which the plaint shall be rejected where it does not disclose a cause of action or where the suit appears from the statements in the plaint to be barred by any law. That in the absence of the specific averment of 'readiness' and 'willingness' it must be held that the plaintiff has no cause of action is concluded by the decision of Supreme Court reported in AIR 1968 SC 1355.

"It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract."

xxxx          xxx             xxx

"In a suit for specific performance, on the other hand, he treated and was required by the court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness."

xxxx          xxx             xxx

"In the present case there is absence of an averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract. In the absence of such an averment it must be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned.       (Emphasis supplied)"

A suit which is not maintainable or a suit which does not disclose any cause of action cannot be given life looking at the availability of plea to any defendant. In Jug Raj Singh's case, Supreme Court is clearly wrong in-stating that the plea of maintainability or absence of cause of action in the light of and S.16(c) of the Specific Relief Act is personal to Vendor/Defendant. Even without any plea from any of the defendants the court is bound to reject the plaint, in the absence of required averment and to dismiss the suit in the absence of proof if the averment is traversed.

In Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 it was held that even a transferee of possession under an agreement for sale must have performed or must be willing to perform his part of the contract. It was observed:

"Even otherwise, in a suit for possession filed by the respondent, successor«-in-interest of the transferor as a subsequent purchaser, the earlier transferee must plead and prove that he is ready and willing to perform his part of the contract so as to enable him to retain his possession of the immovable property held under the agreement. Under S.16(c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and willingness from the date of contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. Equally, when the transferee seeks to avail of S.53 A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He also comes to enquiry must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract."

No court can decree a suit when there is no cause of action disclosed, and when it is not maintainable.

The Mischievous S.27, the Mischief of the Police and the Misery of the Suspects

(Joseph Thattacherry, Advocate, Changanacherry)

There is an old saying that a prostitute can be believed to some extent but not a police man to that extent. Whether the saying is true, or not, the Parliament in its wisdom has enacted S. 25 and S.26 of the Evidence Act by which confession made to a Police Officer or confession made while in the custody of a Police Officer is inadmissible in evidence. Those sections were enacted out of distrust of the Police and the reasonable apprehension that the extensive powers they enjoy would be misused if confessions made to them by the accused persons are made admissible in evidence. The purpose of the restriction imposed is to protect the person accused of a crime from third degree treatment. But as a proviso to those sections is enacted as S. 27, by which, when a fact is deposed to as discovered i n consequence of information received from a person accused of any offence in the custody of a Police Officer, so much of such information as relates distinctly to the fact thereby discovered, is made admissible. The only justification for its admissibility is the guarantee of the information being true owing to the consequent discovery. At the same time under S. 24 of the Act, a confession made by an accused person is irrelevant if the making of the confession is caused by any inducement, threat or promise proceeding from a person in authority. As per S. 164 Cr. PC a magistrate before recording a confession has to caution the accused against making such confession and he shall not record it unless upon questioning, he has reason to believe that it is made voluntarily. But strangely no such prosecution or test of voluntariness is not a requirement for the admissibility in evidence of a disclosure statement before the police. An accused does not normally make a disclosure statement before the Police, lead them to the place of concealment and make the recovery of any weapon or stolen article as the case may be, voluntarily.

The malady is that in applying S. 27, Courts are not to look into the voluntariness or otherwise of the disclosure statement and discovery. However, bad and cruel the means employed in obtaining the information may be, in our country S. 27 of the Evidence Act authorises the Court to ignore those means and to act on the information, if recovery is made in consequence thereof. The case law as it stands now, is that even if the panch witnesses turn hostile, courts can act upon the uncorborated testimony of the investigating officer if it is found convincing. No doubt it is easy for an investigating officer to depose convincingly regarding the simple fact of information and recovery, however false and fake they may be.

By the passing of time, in our country corruption from top to bottom has become rampant. Day by day news is coming forth about swindlig of the exchequer by higher ups to the tune of crores of rupees. Supreme Court' s intervention on the functioning and investigation of the CBI is necessitated, along with rubuke and admonition of its chiefs. Our morale and honesty have gone down to a pitiable low. In this context, just imagine about our Police Officers who are under paid. No wonder if they happen to be susceptible to corruption. Use of S. 27 of the Act may not be that safe in their hands.

Neither in America nor in England we find a similar provision as we have in S. 27. In America confessions are admitted only if there is clear evidence that no undue influence, threat or inducement is brought to bear upon the accused. There, the prosecution cannot use a confession, unless certain stringent conditions and safeguards are fulfilled. They include right to counsel during the interrogation and warning to the suspect or accused of his right to counsel. The Supreme Court has held, as reported in 1994 Crl. LJ 1981 that the accused has a right to have some one, his friend or relative, informed of his arrest, and place of detention and also to consult privately with a lawyer. It was also held that it shall be the duty of the Magistrate to satisfy himself that these requirements have been complied with. But the pity is that, very seldom an accused gets such privileges in the custody of Police. Again in arecent decision of the Supreme Court reported in 1995 Crl. LJ 3992, the court set aside the conviction and sentence of an accused in a murder case, on the ground that the disclosure statement and the recovery memo did not bear the signature or the thumb impression of the accused. But that decision of the apex Court is of no avail to the accused so long as they are at the clemency of the Police, while in their custody and have no option but to affix the signature or give the thumb impression wherever and whenever so ordered by the Police.

This author had a very interesting experience in respect of recovery under S. 27 of the Evidence Act effected by the Police of Chingavanam, within the jurisdiction of JFMC Changanacherry. Two suspects were arrested and crime 193/92 was registered against them under S. 41 (l)(d)and S. 102 of Cr. P.C. On interrogation they have alleged to have confessed before the police mat they have committed theft of several articles from 13 different places within the limits of that Police Station. 13 separate crime cases were registered against them. Allegedly, they lead the investigating Officer to 13 different places far apart. 13 Recovery mahazars and 13 sezure mahazars were seen prepared by the selfsame investigating officer on 15.6.1996 within the span of 7.30 hours. In the meanwhile, S. 161 statements of several witnesses in the cases were also been recorded. And strangely the accused were produced before Court at 5 PM on that very same day. Interestingly 3 recovery mahazars are seen recorded on that same day, same hour and same minute viz. on 15.6.92 at3.30 PM at different places, in C.C. 740/ 92, CC 754/92 and CC 372/93 before the JFMC Changanacherry. Indeed it is quiet impossible. Accused are acquitted. That is only one among the many examples of the menance of S.27.

It is high time, to seriously consider whether S. 27 should not be expunged from the Evidence Act. Our Evidence Act is more than a century old. In spite of several criticisms from several quarters and by various High Courts S. 27 remains in the statute book, even now. As long as it remains in the statute the victims generally are the poor and downtrodden. Hence, it is respectfully submitted that steps has to be taken to delete S. 27 from the Evidence Act, at the earliest.

Hot Mail and E-Mail Serves Lawyers

(By A.J. Jose Aedaiodi, Advocate, Ernakulam)

One need not own a computer to be an E-Mail owner. Anybody and everybody can have one or many E-Mail address. One need not be a paid subscriber to the web site or the Internet or such other service providers to own an E-Mail facility.

FAQ or Frequently Asked Questions

What to do or How to get an E-Mail address. The answer is simple and is more easier than the question. It is not very easily asked by one and all. Usually people do not care to bother. What one has to do is simple. One has to approach a Computer -Internet - E-Mail Service Centre, which is fast increasing along with the Telephone booths.

Second step is to tell the operator there to open a free "hot mail" address for yourself.

Then the programmes goes like this-Dial 172222 for access to the Internet connection. Enter your account number and pass word-which the operator knows. Thus you get access to the Internet you can click the mouse to the free hot mail, and you come across.

(1)    Click at sign up here.

(2)    Type your name.

(3)    Type your proposed hot mail address for Example your want your logo as "notaryjos."

(4)    Type your year of birth.

(5)    Click your country at India by moving the mouse across the screen.

(6)    And click at submit Registration.

Congratulations "Notarjos @ hotmail.Com." is your E-mail address. If your logo is not accepted try once again with another logo and submit Registration with a new or altered name till it is accepted. You can remember your pass word for future use.

It takes hardly seven minutes to register one hot mail address. You can register any number of hot mail address as you wish. If you do not use the hot mail for 120 days the Registration automatically gets wiped off.

Why One Should Have One?

Again the answer is simple. It is your private personal address. It is a notice board where you can write anything and send copies of the news and information to a number of persons. You can send a number of pages of printed material and even a colour photograph of your new born baby to your friend or anybody anywhere in the world provided that person's E-mail address is known to you.

What Lawyers do and How It Helps

How to helps a Lawyer is explained easily. A Lawyer in the Muniff’s Court Devicolam files a suit for injunction and obtains an Interim Order. The respondent wish to file a Civil Revision Petition before the High Court. Here comes your E-mail to help. If your Injunction suit and Interim Applications at Munsiff Court is made in a computer floppy by a few clicks of the mouse sitting in your office at Devicolam mountains the entire file is transmitted to the lawyer at Ernakulam instantaneously.

May be you are right; but how would that lawyer at Ernakulam know that a file is send to him and how will he reply or receive it and acknowledge.

If you want your Ernakulam Lawyer to instantaneously receive and go through the file you may have to tell him. Now you may ring him up over the telephone and say I have send an E-mail and that is all. Yes, what he has to do is just simple. Check his E-mail and to he may down load and print or the file remains saved in his mail box or he can get it anytime from anywhere in the world.

Anywhere In the World?

Yes one can get into the E-mail by operating from any computer connected to Internet. It does not matter if you are in Japan, New York or Rajakad. It is advised that you check your mail box once in a week or every day.

How to do that

Just walk into any booth or any computer with Internet and get into the internet and type your E-mail Address Logo and pass word; your information and all that is send to you with their E-mail address, date and time are all there for you. It is as simple as you think. Next time do not forget, to print your E-mail address on your letter pad, docket sheet and of course on your visiting card.

Yet another word; Your free hot mail address is advantageous because if you subscribe to an Internet connection and obtain your pass word as ad cos @ Md VSNL net in, and if you do not continue to pay the subscription your E-mail facility is likely to be stopped. But free hot mail address remains free and of course for your private personal use.

What else

Yes you can log in and go in for an E-chat with your colleagues. Lawyers from the world over can actually talk to each other on the computer with E-chat. Need I say more.

How Costly?

It would hardly take one local call to transmit a 200 pages file from one computer to any E-mail address. This is how it is done. Once you finish Typing or Scanning the matter and documents, the entire matter is collected and packed into one Electronic parcel. It is sent at a speed that would reach the destination almost instantaneously. We get confirmation on commanding to send that the addressee had been "served" but it will be "received" only when he opens his E-mail box. You can send a greeting card with all colorful embroidery to many persons at a single click to send. It would turn out to be cheaper than the cheapest and faster than the fastest, and you become, smarter than the smartest.